Brown v. Turner

| Ala. | Jan 15, 1849

DARGAN, J.

This was an action of assumpsit, on a bill of exchange, brought by the indorsee, against the drawer. It is objected, that the declaration does not show, that payment was demanded of Austill & Marshall, the acceptors. The averment is, “ that when said bill became due and payable, to wit, on the 12th day of November., 1844, to.wit, in the city of Mobile, the said bill was presented, and shown by John A. Hitchcock, a notary public, to the agent of said Marshall, one of the firm of Austill & Marshall, both Austill and Marshall being absent from the city, and their partnership being dissolved, and payment thereof demanded.

We think the declaration shows a sufficient demand. It is said, that if the acceptance be by partners, then the presentment for payment should be made at their place of business, or at the dwelling of either of the partners. Story on Bills, § 362; Bayley on Bills, 285, 286,

A demand of payment of one, is a demand of all; nor can the dissolution of their partnership, before the bill falls due, vary the rule, or render it necessary that a separate demand should be made of each. As both members of the firm were absent from the city, a demand of the agent of one, is sufficient to charge the drawer.

2. In the progress of the trial, the depositions of two witnesses were offered as evidence, to the reading of which, several objections were made by the defendant. The first is, that the affidavit was insufficient to authorize the issuance of the commission. The affidavit states, that the testimony of the witnesses was material, and they reside in the city of Mobile. We know of no statute, that authorizes the taking of depositions to be read on trials at common law, on the grounds stated in this affidavit. By the act of the 21st January, 1845, it is lawful in any suit, pending in the courts of Washington, Clarke, or Monroe, to take the deposition of a witness whose testimony is material, and who resides in the city, or county of Mobile. But this act cannot be extended, so as to embrace the county of Choctaw, although the county of Choctaw hás been formed since the passage of the act, out of parts of the counties of Washington and Sumter. The mode of taking testimony by deposition, to be used in trials at law, is allowed by statutes only, and is in derogation of the rules of evidence at common law, and should be strictly pursued. To authorize the taking of the deposition of a witness, on the sole ground that he resides in the county, or city of Mobile, it must be shown, by the affidavit, that the suit is pending in one of the counties of Washington, Clarke, or Monroe.

Before the testimony of a witness, taken by deposition, can be read as evidence, the party at whose instance the deposition is taken, must show, that an affidavit has been made, setting forth some of the several grounds that authorize the issuance of a commission. The affidavit in this case, discloses no ground for issuing the commission, and is therefore fully defective. As this objection is fatal to the whole deposition, it is unnecessary to notice the other objections.

Let the judgment be reversed, and the cause remanded.